In a rather explosive interview, U.S. Rep. Jerrold Nadler tells the Bay Area Reporter that the Defense of Marriage Act repeal bill he plans to introduce in the House will include a “certainty provision” to ensure continued federal recognition of a same-sex marriage even if a couple moves to a state where such a marriage is not recognized but will not be so broad as to allow federal recognition of domestic partnerships, civil unions or other less-than-marriage state developments.

THE “CERTAINTY PROVISION” APPEARS to be a Nadler creation, as it’s not something I’ve ever heard discussed and not a concept that appears to have been explored anywhere else in Google’s mind, and I think it’s a quite problematic concept, at least politically. From the B.A.R.:

During his prepared remarks, Nadler said he would include the “certainty provision” in his bill in order to give same-sex couples and their families piece of mind that should they move to a state that does not allow same-sex couples to wed their marriage would still be valid.

“No family should have to fear that risk and uncertainty, and my bill will ensure they do not,” said Nadler.

Following clarification from Rep. Nadler’s office, the “certainty provision” would not require a state where same-sex marriages are prohibited to itself recognize a marriage validly entered into by a same-sex couple elsewhere. It would, however, mean that if a same-sex couple married in Iowa moved to, say, Ohio, then the couple’s marriage would still be recognized as valid for federal legal purposes.

Even in that situation, though, a state where same-sex marriages are prohibited by statute or the state’s constitution would, with the bill’s passage, be in the position of having residents that it considers to be unmarried living in the state recognized as married by the federal government. Although not as extreme as compelling the state itself to recognize the same-sex marriage, this seems to me to still cause significant opposition from not only marriage equality opponents but also some who are more agnostic on the issue but want to see the issue “left to the states” to come to their own decision.

It also would cause practical difficulties for the states where same-sex marriage is not allowed. In Ohio, for example, there is an amendment prohibiting same-sex marriage in the state. Under the Nadler proposal, if passed, there likely would be at least some same-sex couples who are Ohio residents filing joint federal income taxes. Ohio state taxes ordinarily reference federal filings, but the state obviously would have to make some changes in its procedures to address this new situation.

Although not as problematic for passage as compelling state recognition, Nadler’s proposed “certainty provision” appears likely to create a lot more uncertainty and complications for the bill’s prospects for passage than a simple DOMA repeal bill would cause.

THE NON-RECOGNITION OF “LESS-THAN-MARRIAGE” state arrangements presents an interesting and nuanced discussion that is more likely to cause discussion among LGBT activists than anti-equality or “federalism” forces. It also recalls my question about the current wording of Rep. Tammy Baldwin’s bill, the Domestic Partner Benefits and Obligations Act (H.R. 2517), to allow for partner benefits to federal employees.

The fact is that the “patchwork of states” allows for great experimentation at the state level, but it leads to great complication if — as with domestic relations — the federal government uses state-defined terms to allocate federal benefits. (This is, in its way, the opposite problem than that caused by the “certainty provision.”) As such, the absence of the Defense of Marriage Act, in this way, raises even more questions than its presence does.

With DOMA in place, it’s clear that same-sex marriages are not able to be recognized for, say, taxation purposes under federal law. Under such a scenario, it’s all the more clear that the federal government would not be allowed to recognize civil unions or domestic partnerships as a substitute or proxy for “marriage” in interpreting federal law. But, if DOMA were to disappear from the law books, I can easily envision a scenario where a Massachusetts married same-sex couple is clearly allowed to file joint taxes but a New Jersey couple with a domestic partnership attempts to do so, is denied and then sues.

What Nadler appears to be saying is that his repeal bill will actually make clear that those “other” statuses will not be allowed to stand in as a proxy for federal recognition of a couple’s marital status. From the Reporter:

“No, it will not include domestic partnerships or civil unions. It is going to be just marriage,” said Nadler . . . .

Nadler said that including domestic partnerships or civil unions in his legislation “gets very complicated” because the laws governing such legally recognized relationships are “different in every state.” Also, he said it would cloud the legislation’s end goal, which is ensuring all Americans, regardless of their sexual orientation, have the right to marry. “Historically domestic partnerships and other relationships have been an interregnum until we get to marriage, which we need to push for as soon as possible.”

This could lead to quite a strange situation because, assuming the Baldwin’s bill gains traction, the federal government will be taking steps itself to recognize such an “interregnum” with federal employees even as Nadler’s bill would be denying any federal recognition of those same-sex couples whose states currently are at such an interregnum.

* * * * *

These discussions and debates are the inevitable result of many people of good will attempt to correct the damage done in 1996 with DOMA’s passage. In the coming days or weeks, depending on when Nadler plans to introduce the bill, expect to be hearing a lot more about these and other issues relating to any possible DOMA repeal. Regardles of views on this or that provision, though, I want to remain clear that these are debates over strategy and tactics, not in any way an attack on the folks working to right this wrong.

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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.

5 Comments

Bill

Posted July 28, 2009 at 1:11 PM

As a legislative maneuver, it will allow middle-road types to vote to strip the certainty provision and then vote for the remaining repeal of DOMA. That may not be anyone’s strategy at present, but it’s one way to think about how we get to a bill that can be passed by both houses. And I expect we’re a long way from that.

Under the Nadler proposal, if passed, there likely would be at least some same-sex couples who are Ohio residents filing joint federal income taxes. Ohio state taxes ordinarily reference federal filings, but the state obviously would have to make some changes in its procedures to address this new situation.

It isn’t necessarily true that Ohio would have to make changes to their state filing procedures. I’m a Vermont resident in a civil union, and our Vermont state taxes are based on the federal tax return. Vermont did not make any changes to how the process works, and instead, expect residents to complete a federal return as if they were federally recognized as a couple, and use that (bogus) return for state filings. The non-joint federal return is what is actually filed with the feds. With that said, I have thought it was a less-than-equal system—we are expected to complete the federal return twice, which adds accounting costs for same-sex couples. Additionally, I’ve never been comfortable submitting a “let’s pretend” federal return to Vermont (again, the federal return is non-joint, and Vermont requires this make believe federal return).

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